PR. COMMISSIONER OF INCOME TAX, CENTRAL-1, DELHI vs. SMT. SANGEETA SAWHNEY

..... Appellant

versus

SMT. SNEH LATA SAWHNEY ..... Respondent

AND

+ ITA 781/2023

THE PR. COMMISSIONER OF INCOME TAX -CENTRAL -1

..... Appellant

versus

SMT. SANGEETA SAWHNEY ..... Respondent

AND

+ ITA 782/2023

THE PR. COMMISSIONER OF INCOME Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 3 of 47

TAX -CENTRAL -1

..... Appellant

versus

SH. PRAVEEN SAWHNEY ..... Respondent

AND

+ ITA 783/2023

THE PR. COMMISSIONER OF INCOME TAX -CENTRAL -1

..... Appellant

versus

SH. PRAVEEN SAWHNEY ..... Respondent

AND

+ ITA 784/2023

THE PR. COMMISSIONER OF INCOME TAX -CENTRAL -1

..... Appellant

versus

SH. PRAVEEN SAWHNEY ..... Respondent

AND

+ ITA 786/2023

THE PR. COMMISSIONER OF INCOME Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 4 of 47

TAX -CENTRAL -1

..... Appellant

versus

SH. PRAVEEN SAWHNEY ..... Respondent

AND

+ ITA 787/2023

THE PR. COMMISSIONER OF INCOME TAX -CENTRAL -1

..... Appellant

versus

SMT. SANGEETA SAWHNEY ..... Respondent

AND

+ ITA 788/2023

THE PR. COMMISSIONER OF INCOME TAX -CENTRAL -1

..... Appellant

versus

SMT. SANGEETA SAWHNEY ..... Respondent

AND

+ ITA 790/2023

THE PR. COMMISSIONER OF INCOME TAX -CENTRAL -1

..... Appellant

Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 5 of 47

versus

SMT. SANGEETA SAWHNEY ..... Respondent

AND

+ ITA 791/2023

THE PR. COMMISSIONER OF INCOME TAX -CENTRAL -1

..... Appellant

versus

SH. PRAVEEN SAWHNEY ..... Respondent

AND

+ ITA 794/2023

THE PR. COMMISSIONER OF INCOME TAX -CENTRAL -1

..... Appellant

versus

SMT. SANGEETA SAWHNEY ..... Respondent

AND

+ ITA 796/2023

THE PR. COMMISSIONER OF INCOME TAX -CENTRAL -1

..... Appellant

versus Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 6 of 47

SMT. SANGEETA SAWHNEY ..... Respondent

AND

+ ITA 799/2023

THE PR. COMMISSIONER OF INCOME TAX -CENTRAL -1

..... Appellant

versus

SH. PRAVEEN SAWHNEY ..... Respondent

AND

+ ITA 69/2024

PR. COMMISSIONER OF INCOME TAX, CENTRAL-1, DELHI

.....Appellant

versus

SMT. SANGEETA SAWHNEY

.....Respondent

AND + ITA 72/2024

PR. COMMISSIONER OF INCOME TAX, CENTRAL-1, DELHI

.....Appellant

versus

SMT. SANGEETA SAWHNEY

.....Respondent

AND

+ ITA 73/2024

PR. COMMISSIONER OF INCOME TAX, CENTRAL-1, DELHI

.....Appellant Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 7 of 47

versus

SMT. SANGEETA SAWHNEY

.....Respondent

AND

+ ITA 74/2024

PR. COMMISSIONER OF INCOME TAX, CENTRAL-1, DELHI

.....Appellant

versus

SMT. SANGEETA SAWHNEY

.....Respondent

AND

+ ITA 76/2024

PR. COMMISSIONER OF INCOME TAX, CENTRAL-1, DELHI

.....Appellant

versus

SMT. SANGEETA SAWHNEY

.....Respondent

AND

+ ITA 75/2024

PR. COMMISSIONER OF INCOME TAX, CENTRAL-1, DELHI

.....Appellant

versus

SMT. SANGEETA SAWHNEY

.....Respondent

Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 8 of 47

AND

+ ITA 88/2024

PR. COMMISSIONER OF INCOME TAX, CENTRAL-1, DELHI

.....Appellant

versus

SH. PRAVEEN SAWHNEY

.....Respondent

AND

+ ITA 89/2024

PR. COMMISSIONER OF INCOME TAX, CENTRAL-1, DELHI

.....Appellant

versus

PRAVEEN SAWHNEY

.....Respondent

AND

+ ITA 90/2024

PR. COMMISSIONER OF INCOME TAX, CENTRAL-1, DELHI

.....Appellant

versus

SH. PRAVEEN SAWHNEY

.....Respondent

AND

+ ITA 94/2024

PR. COMMISSIONER OF INCOME TAX, CENTRAL-1, DELHI

.....Appellant

versus Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 9 of 47

SH. PRAVEEN SAWHNEY

.....Respondent

AND

+ ITA 92/2024

PR. COMMISSIONER OF INCOME TAX, CENTRAL-1, DELHI

.....Appellant

versus

SH. PRAVEEN SAWHNEY

.....Respondent

AND

+ ITA 93/2024

PR. COMMISSIONER OF INCOME TAX, CENTRAL-1, DELHI

.....Appellant

versus

SH. PRAVEEN SAWHNEY

.....Respondent

Advocates who appeared in this case

For the Appellant : Mr. Mr Puneet Rai, SSC, Mr Ashvini Kumar and Mr Rishabh Nangia, SCs and Mr Nikhil Jain, Advocates for the Revenue.

For the Respondent : Dr Rakesh Gupta, Mr Somil Agarwal and Mr Dushyant Agarwal, Advocates for the Assessee. CORAM: HON'BLE MR. JUSTICE VIBHU BAKHRU HON'BLE MR. JUSTICE TEJAS KARIA

JUDGMENT VIBHU BAKHRU, J.

Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 10 of 47

INTRODUCTION 1. The Revenue has filed the present appeals under Section 260A of the Income Tax Act, 1961 [the Act] assailing the orders passed by the learned Income Tax Appellate Tribunal [ITAT] allowing the respective appeals preferred by the respondents [Assessees]. 2. The present batch of appeals concerns three Assessees namely Smt. Sneh Lata Sawhney, Smt. Sangeeta Sawhney and Sh. Praveen Sawhney. ITA No.216/2023 concerns Late Sh. B.L. Sawhney and Smt. Sneh Lata Sawhney is arrayed as the respondent in the said appeal being the legal heir of the deceased assessee, Sh. B.L. Sawhney. 3. The Assessees had filed their respective appeals against the orders of the Commissioner of Income Tax (Appeals) [CIT(A)] in respect of appeals emanating from the assessment orders [quantum appeals] as well as the orders passed in the penalty proceedings [penalty appeals]. It is material to note that the assessments made in the case of Smt. Sneh Lata Sawhney and Smt. Sangeeta Sawhney were made on protective basis. However, in the case of Sh. Praveen Sawhney and in the case of Sh. B.L. Sawhney (since deceased), the assessment has been made on substantive basis. 4. The Assessees are related and the questions involved are identical and therefore, the present appeals have been taken up together. It is also material to note that the orders impugned in the batch of these appeals (twenty-nine in numbers) are three separate orders passed by the learned ITAT – the order dated 01.06.2021 is the subject matter of ITA No. 216/2023; the order dated 22.07.2022 is a common order in four appeals Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 11 of 47

[being ITA Nos 694/2023, ITA 706/2023, ITA 707/2023, ITA 758/2023] and the subject matter of the remaining appeals (twenty-four in numbers) is the common order dated 18.05.2023 passed by the learned ITAT. 5. The tabular statement setting out the details of the present appeals is set out below: - Appeals preferred by the Revenue Sr. No. Assessee ITA No. AY Date of the Impugned Order Whether emanating from quantum / penalty orders 1 Smt. Sneh Lata Sawhney (L/H Late B.L. Sawhney) 216/2023 2006-07 01.06.2021 Quantum 2 Smt. Sneh Lata Sawhney 694/2023 2006-07 22.07.2022 Penalty 3 Smt. Sneh Lata Sawhney 706/2023 2011-12 22.07.2022 Quantum 4 Smt. Sneh Lata Sawhney 707/2023 2011-12 22.07.2022 Penalty 5 Smt. Sneh Lata Sawhney 758/2023 2006-07 22.07.2022 Quantum 6 Smt. Sangeeta Sawhney 781/2023 2008-09 18.05.2023 Quantum 7 Sh. Praveen Sawhney 782/2023 2006-07 18.05.2023 Quantum 8 Sh. Praveen Sawhney 783/2023 2009-10 18.05.2023 Quantum 9 Sh. Praveen Sawhney 784/2023 2008-09 18.05.2023 Quantum 10 Sh. Praveen Sawhney 786/2023 2010-11 18.05.2023 Quantum 11 Smt. Sangeeta Sawhney 787/2023 2006-07 18.05.2023 Quantum 12 Smt. Sangeeta Sawhney 788/2023 2009-10 18.05.2023 Quantum 13 Smt. Sangeeta Sawhney 790/2023 2011-12 18.05.2023 Quantum Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 12 of 47

14 Sh. Praveen Sawhney 791/2023 2007-08 18.05.2023 Quantum 15 Smt. Sangeeta Sawhney 794/2023 2010-11 18.05.2023 Quantum 16 Smt. Sangeeta Sawhney 796/2023 2007-08 18.05.2023 Quantum 17 Sh. Praveen Sawhney 799/2023 2011-12 18.05.2023 Quantum 18 Smt. Sangeeta Sawhney 69/2024 2006-07 18.05.2023 Penalty 19 Smt. Sangeeta Sawhney 72/2024 2011-12 18.05.2023 Penalty 20 Smt. Sangeeta Sawhney 73/2024 2008-09 18.05.2023 Penalty 21 Smt. Sangeeta Sawhney 74/2024 2010-11 18.05.2023 Penalty 22 Smt. Sangeeta Sawhney 76/2024 2007-08 18.05.2023 Penalty 23 Smt. Sangeeta Sawhney 75/2024 2009-10 18.05.2023 Penalty 24 Sh. Praveen Sawhney 88/2024 2006-07 18.05.2023 Penalty 25 Sh. Praveen Sawhney 89/2024 2011-12 18.05.2023 Penalty 26 Sh. Praveen Sawhney 90/2024 2009-10 18.05.2023 Penalty 27 Sh. Praveen Sawhney 94/2024 2007-08 18.05.2023 Penalty 28 Sh. Praveen Sawhney 92/2024 2008-09 18.05.2023 Penalty 29 Sh. Praveen Sawhney 93/2024 2010-11 18.05.2023 Penalty

ITA No.782/2023 & Connected Cases Page 13 of 47

ITA No.782/2023 & Connected Cases Page 14 of 47

ITA 216/2023, on the following questions of law: - “I. Whether on facts and circumstances of the case, the Income Tax Appellate Tribunal [“ITAT”] is correct in quashing the assessment order as barred by limitation without going into merits of the case?

II. Whether on facts and circumstances of the case, the ITAT is correct in not allowing extension of the time barring date, when a valid reference was sent by competent authority to Swiss authorities as per the provisions of the Income Tax Act, 1961 [“Act”] and DTAA between India and Switzerland and holding the assessment order as being time barred?” 11. By a common order dated 30.01.2024 passed in ITA Nos. 72/2024, 73/2024, 74/2024, 75/2024 and 76/2024 – which are penalty appeals – this court framed the following questions of law: “I. Whether on facts and circumstances of the case, the ITAT is correct in quashing the assessment order as barred by limitation without going into merits of the case, thereby deleting the penalty imposed vide penalty order passed under Section 271(l)(c) of the Act? II. Whether on facts and circumstances of the case, the ITAT is correct in not allowing extension of the time- barring date, when a valid reference was sent by competent authority to Swiss authorities as per the provisions of the Act and DTAA between India and Switzerland, thereby deleting the penalty imposed as assessment order being held as time barred?” 12. By a subsequent order dated 12.11.2024, this court had held that the appeals being [ITA Nos. 69/2024, ITA 72/2024, ITA 73/2024, ITA 74/2024, ITA 76/2024, ITA 75/2024, ITA 88/2024, ITA 89/2024, ITA 90/2024, ITA Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 15 of 47

92/2024, ITA 93/2024 and ITA 94/2024] would be heard on the questions of law as noted in the order dated 30.01.2024 passed in ITA Nos. 72-76/2024. PREFATORY FACTS 13. The Assessees have succeeded in their respective appeals before the learned ITAT on the ground that the assessment orders from which the appeals emanate were passed beyond the period as stipulated under Section 153B of the Act. As noted above, unless the context indicates otherwise, we shall refer to the facts as obtaining in ITA No.782/2023, which is a quantum appeal in the case of the Assessee, Parveen Sawhney, in respect of the AY 2006-07. 14. Search and seizure operations were conducted under Section 132 of the Act in the case of Sh. Bhushan Lal Sawhney and other related persons on 28.07.2011. In connection with the said operations, warrant of authorization under Section 132 of the Act was also issued in the name of the Assessee [Praveen Sawhney]. 15. Thereafter, the notices under Section 153A of the Act were issued including the notice dated 16.05.2012 to the Assessee [Praveen Sawhney] requiring him to file the return for AY 2006-07. In response to the said notice, the Assessee furnished his return of income on 25.06.2012, declaring the total income of ₹4,54,001/-. Thereafter, various notices were issued to the Assessee to respond to certain queries and clarifications sought by the AO. During the course of the search operations, statement of the Assessee was also recorded. 16. The Revenue had information regarding the Assessee maintaining a Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 16 of 47

bank account with HSBC Bank, Geneva, Switzerland and the Assessee was confronted with the same during the course of the proceedings. 17. At the instance of the AO, on 11.06.2013, the competent authority [Joint Secretary, FT & TR- I] made a request for administrative assistance to the Switzerland Tax Authorities under the provisions of ‘Exchange of Information’ Article of Indo-Switzerland Double Taxation Avoidance Agreement [Indo-Swiss DTAA]. 18. The information sought related to the period prior to 01.04.2011. The Swiss authorities sent a communication dated 02.07.2019 denying the request for information on the ground that the Indo-Swiss DTAA did not entail any obligation to provide information for a period prior to 01.04.2011. 19. According to the Revenue, the Assessee admitted maintaining the account with HSBC Bank, Geneva. The reassessment proceedings culminated in the assessment order dated 04.03.2015 passed under Section 153A read with Section 143(3) of the Act, whereby certain additions were made in the income from other sources and unexplained expenditure under Section 69C of the Act. 20. The Assessee appealed the said decision before the learned CIT(A). However, the said appeal was dismissed by the order dated 29.12.2016. 21. Aggrieved by the said dismissal, the Assessee preferred the appeal before the learned ITAT raising several grounds including that the assessment order had been passed beyond the period of limitation as prescribed under Section 153B of the Act. The learned ITAT accepted the Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 17 of 47

said contention and allowed the appeals on 18.05.2023. In view of its decision that the assessment order dated 04.03.2015 was barred by the limitation, the learned ITAT did not examine the other grounds as raised by the Assessee on merits of the said issues. RIVAL STANDS 22. It was the Revenue’s case before the learned ITAT that the assessment order was not barred by limitation as the period for passing the assessment order under Section 153B of the Act was extended in terms of Clause (ix) of the Explanation to Section 153B of the Act. The Revenue contends that in terms of Clause (ix) of the Explanation to Section 153B of the Act, the period commencing from the date on which a reference was made for request for information by an authority competent under the agreement referred to in Section 90 or Section 90A of the Act – in this case the Indo-Swiss DTAA – and ending with the date on which the information is last received or a period of one year, whichever is less, is required to be excluded. 23. The Revenue claims that the request for information in terms of the Indo-Swiss DTAA was made to the concerned authority of the Swiss Confederation and no response was received within the period of one year from the date of the making such request. Therefore, the period of one year is required to be excluded for the purpose of computing the limitation under Section 153B of the Act. 24. The Assessee contends to the contrary. The Assessee claims that the reference made was not valid as the Revenue had sought information in Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 18 of 47

respect of the period prior to 01.04.2011 being the beginning of the fiscal year next following the date on which Article 26 of the Indo-Swiss DTAA was substituted. 25. The learned ITAT accepted the Assessee’s contention and thus, concluded that the benefit of Clause (ix) of the Explanation to Section 153B of the Act was not available to the Revenue as the reference made to the Swiss authorities was invalid. Accordingly, the appeals preferred by the Assessees were allowed. REASONS AND CONCLUSION 26. As is apparent from the above, the question whether the period of one year is required to be excluded for the purpose of computing the period of limitation for passing the assessment order, is the heart of the dispute. There is no dispute that if the said period is excluded from the time available under Section 153B of the Act for making the assessment / reassessment order on account of the Revenue making a reference in terms of the Agreement under Section 90 of the Act, the assessment orders were passed within the period of limitation. The AO had passed the assessment order on 04.03.2015 and the time period of passing the assessment order was available till 31.03.2015. 27. It is relevant to refer to Clause (ix) of the Explanation to Section 153B of the Act, which was numbered as Clause (viii) at the material time. The same is set out below: “Explanation - In computing the period of limitation under this.–

Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 19 of 47

***

***

***

(ix) the period commencing from the date on which a reference or first of the references for exchange of information is made by an authority competent under an agreement referred to in Section 90 or Section 90-A and ending with the date on which the information requested is last received by the Principal Commissioner or Commissioner or a period of one year, whichever is less; or

***

***

***

shall be excluded”

ITA No.782/2023 & Connected Cases Page 20 of 47

below: - “Sir / Madam, Sub: Request for information under ‘Exchange of Information’ Article of Indo-Switzerland Double Taxation Avoidance Convention – Enquiry into the tax affairs of Mr. Praveen Sawhney - Reg. Your request for administrative assistance from received on 2013-05-20 on the above mentioned subject has been received in Exchange of Information Cell, Foreign Tax & Tax Research Division of Central Board of Direct Taxes. 2. A request for administrative assistance has been made to the Switzerland Tax Authorities on the 11 June, 2013 by the Joint Secretary, FT & TR- I, the competent authority of India, under the provisions of 'Exchange of Information' Article of Indo-Switzerland Double Taxation Avoidance Agreement. 3. Efforts are being made for the timely response to your request for administrative assistance and the information will be made available to you as soon as the Exchange of Information Cell receives any response from Competent Authority office. 4. This information is requested under ‘Exchange of Information’ Article of Indo-Switzerland Double Taxation Avoidance Agreement and its use and disclosure is strictly governed by it. Yours faithfully, Sd /- P.S.SIVASANKARAN US (FT &TR-III) (2)”

ITA No.782/2023 & Connected Cases Page 21 of 47

20.05.2013 and the request was made to the concerned Swiss authority under the Exchange of Information Article of the Indo-Swiss DTAA - Article 26. The learned ITAT also accepted the aforesaid fact and summarized the controversy as under: - “11. Now the entire controversy boils down to the issue whether the aforementioned reference is a valid reference and, if not, then can an invalid reference extend the period of limitation?” 32. On plain term of Clause (ix) of the Explanation to Section 153B of the Act, the period of one year is required to be excluded for the purpose of computing the period of limitation for making an assessment under Section 143A of the Act. 33. The learned ITAT’s decision that the said period is unavailable rests essentially on the ground that the reference made for information under Indo-Swiss DTAA was invalid. This in turn rests on the ground that in terms of the Indo-Swiss DTAA, request for information could not be made for the period prior to 01.04.2011. According to the learned ITAT, the reference made by the Revenue was invalid as it was not covered under Article 26 of the Indo-Swiss DTAA and the benefit of Clause (ix) of the Explanation to Section 153B of the Act was not available in case of any invalid reference. 34. The learned ITAT noted that the Notification dated 27.12.2011 [Notification No. S.O. 2903(E)] is clear that the Indo-Swiss DTAA can be made applicable only for the information that relates to fiscal year beginning on or after 01.04.2011. Since the information sought by the Revenue was relevant to the period from 01.04.1995 to 31.03.2012, the learned ITAT held that the reference was invalid. Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 22 of 47

1 (2007) 294 ITR 561 2 (2013) 219 Taxman 294 3 ITA No. 1734/Del/2014 decided on 05.02.2019 Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 23 of 47

Revenue, that although the Indo-Swiss DTAA as amended was notified on 27.12.2011, the Indo-Swiss DTAA as existing prior to amendment also contained obligations for exchange of information. Thus, the request for information for the period prior to 01.04.2011, was also maintainable. 39. It is material to note that the Government of India had issued a Notification dated 21.04.1995 [G.S.R. No. 375(E)] in exercise of its powers under Section 90 of the Act directing the provisions of the Indo-Swiss DTAA would be given effect to in the Union of India. Article 24 of the said Indo Swiss DTAA, as notified, contained provisions regarding exchange of information. The relevant extract of the said Notification is set out below: “Notification G.S.R. NO. 357(E), dtd. 21.4.1995. Whereas the annexed Agreement between the Government of the Republic of India and the Government of the Swiss Confederation for the avoidance of double taxation with respect to taxes on income has entered into force on 29th December, 1994 after the notification by both the Contracting States to each other of the completion of the procedures required under their laws for bringing into force of the said Agreement in accordance with paragraph 1 of Article 26 of the said Agreement; Now, therefore, in exercise of the powers conferred by section 90 of the Income-tax Act, 1961 (43 of 1961), the Central Government hereby directs that all the provisions of the said Agreement shall be given effect to in the Union of India. AGREEMENT BETWEEN THE REPUBLIC OF INDIA AND THE SWISS CONFEDERATION FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME--THE GOVERNMENT OF THE REPUBLIC OF INDIA AND THE SWISS FEDERAL COUNCIL Desiring to conclude an Agreement for the avoidance of double taxation with respect to taxes on income, Have agreed as follows: Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 24 of 47

***

***

*** Article 24 EXCHANGE OF INFORMATION 1. The competent authorities of the Contracting States shall exchange such information (being information which is at their disposal under their respective taxation laws in the normal course of administration) as is necessary for carrying out the provisions of this Agreement in relation to the taxes which are the subject of this Agreement. Any information so exchanged shall be treated as secret and shall not be disclosed to any persons other than those concerned with the assessment and collection of the taxes which are the subject of this Agreement. No information as aforesaid shall be exchanged which would disclose any trade, business, industrial or professional secret or trade process. 2. In no case shall the provisions of this Article be construed as imposing upon either of the Contracting States the obligation to carry out administrative measures at variance with the regulations and practice of either Contracting State or which would be contrary to its sovereignty, security or public policy or to supply particulars which are not procurable under its own legislation or that of the State making application.”

ITA No.782/2023 & Connected Cases Page 25 of 47

New Delhi. the 7th February, 2001 INCOME TAX G.S.R. 74(E). – Whereas the annexed Protocol amending the Agreement between the Government of the Republic of India and the Government of the Swiss Federal Council for the Avoidance of Double Taxation With Respect To Taxes on Income has come into force on 20th December, 2000, the date of the later of the notifications by both the Contracting States to each other, under Article 16 of the Protocol Amending the Agreement, of the satisfaction of all the legal requirements and procedures for giving effect to the said Protocol. Now, therefore, in exercise of the powers conferred by section 90 of the Income tax Act, 1961 (43 of 1961), the Central Government hereby directs that al1 the provisions of the said Protocol Amending the Agreement, shall be given effect to in the Union of India –

[Notification No. 35/F. No.501/7/73-FTD] VIJAY MATHUR, Jt. Secy.”

“ANNEXURE PROTOCOL AMENDINO THE AGREEMENT BETWEEN THE REPUBLIC OF INDIA AND THE SWISS CONFEDERATION FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAX ON INCOME

THE GOVERNMENT OF THE REPUBLIC OF INDIA AND THE SWISS FEDERAL COUNCIL DESIRING to amend the Agreement between the Republic of India and the Swiss Confederation for the avoidance of double taxation with respect to taxes on income, signed at New Delhi on 2 Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 26 of 47

November 1994 (hereinafter referred to as “the Agreement”), have agreed as follows:

***

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***

Article 14 Article 23 to 27 of the Agreement shall become Articles 25 to 29.”

S.O. 2903 (E). – Whereas a Protocol amending the Agreement between the Republic of India and the Swiss Confederation for the avoidance of double taxation with respect to taxes on income with Protocol, signed at New Delhi on the 2nd day of November, 1994, as amended by the supplementary Protocol signed at New Delhi on the 16th day of February, 2000, was signed at New Delhi on the 30th day of August, 2010; And whereas the date of entry into force of the said Protocol Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 27 of 47

is the 7th day of October, 2011, being the date of later of the notifications of satisfaction of all legal requirements and procedures as required by the respective laws for entry into force of the said Protocol, in accordance with Paragraph 2 of Article 14 of the said Protocol; And whereas sub-paragraph (a) of Paragraph 2 of Article 14 of the said Protocol provides that the provisions of the said Protocol shall have effect in India in respect of income arising in any fiscal year beginning on or after the first day of April next following the calender year in which the Amending Protocol entered into force; And whereas Paragraph 3 of Article 14 of the said Protocol provides that with respect to Article 26 of the Agreement, the exchange of information provided for in the said Protocol will be applicable for information that relates to any fiscal year beginning on or after the first day of January of the year next following the date of signature of the said Protocol; Now, therefore, in exercise of the powers conferred by Section 90 of the Income-tax Act, 1961 (43 of 1961), the Central Government hereby directs that all the provisions of the said Protocol, as set out in the Annexure hereto, shall be given effect to in the Union of India in respect of income arising in any fiscal year beginning on or after the 1st day of April, 2012 and with respect to Article 26 of the Agreement, the exchange of information provided for in the said Protocol will be applicable for information that relates to any fiscal year beginning on or after the 1st day of April, 2011. PROTOCOL AMENDING THE AGREEMENT BETWEEN THE REPUBLIC OF INDIA AND THE SWISS CONFEDERATION FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME WITH PROTOCOL, SIGNED AT NEW DELHI ON 2 NOVEMBER, 1994, AS AMENDED BY THE SUPPLEMENTARY PROTOCOL SIGNED AT NEW DELHI ON 16 FEBRUARY, 2000. The Government of the Republic of India And Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

ITA No.782/2023 & Connected Cases Page 28 of 47

the Swiss Federal Council; Desiring to conclude a Protocol (hereinafter referred to as “Amending Protocol”) to amend the Agreement between the Contracting Parties for the Avoidance of Double Taxation with respect to Taxes on Income, signed at New Delhi on 2 November 1994, as amended by the supplementary Protocol signed at New Delhi on 16 February, 2000 (hereinafter referred to as “the Agreement”); Have agreed as follows: ***

***

***

ARTICLE 8

Article 26 (Exchange of information) of the Agreement shall be deleted and replaced by the following Article: “Article 26 Exchange of information 1. The competent authorities of the Contracting States shall exchange such information as is foreseeably relevant for carrying out the provisions of this Agreement or to the administration or enforcement of the domestic laws concerning taxes covered by the Agreement insofar as the taxation thereunder is not contrary to the Agreement. The exchange of information is not restricted by Article 1. 2. Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of the enforcement or prosecution in respect of, or the determination of appeals in relation to the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. Notwithstanding the foregoing, information received by a Contracting State may be used for Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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other purposes when such information may be used for such other purposes under the laws of both States and the competent authority of the supplying State authorises such use. 3. In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation: a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State; b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information the disclosure of which would be contrary to public policy (order public). 4. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information. 5. In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person. In order to obtain such information, the tax authorities of the requested Contracting State shall, therefore, have the power to enforce the disclosure of information covered by this paragraph, notwithstanding paragraph 3 or any contrary provisions in its domestic laws.” Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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*****

***** ARTICLE 14 1. The Government of the Contracting States shall notify each other through diplomatic channels that all legal requirements and procedures for giving effect to this Amending Protocol have been satisfied. 2. The Amending Protocol, which shall form an integral part of the Agreement, shall enter into force on the date of the later of the notifications referred to in paragraph 1 and its provisions shall have effect: (a) in India, In respect of income arising in any fiscal year beginning on or after the first day of April next following the calender year in which the Amending Protocol entered into force; and (b) in Switzerland, in respect of income arising in any fiscal year beginning or or after the first day of January next following the calender year in which the Amending Protocol entered into force. : 3. Notwithstanding paragraph 2 of this Article, with respect to Article 26 of the Agreement, the exchange of information provided for in this Amending Protocol will be applicable for information that relates to any fiscal year beginning on or after the first day of January of the year next following the date of signature of this Amending Protocol. In witness whereof the undersigned, duly authorised thereto by their respective Governments, have signed this Amending Protocol. Done in duplicate at New Delhi this 30th day of August, 2010 in the English, German and Hindi languages, all texts being equally authentic. In the case of any divergence, the English text shall prevail. For the Government of the Republic of India: For the Swiss Federal Council:

(Shri Pranab Mukherjee) (Micheline Calmy-Rey) Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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Finance Minister Head of the Swiss Federal Department of Foreign Affairs

[Notification No. 62/2011/F. No. 501/01/1973-FTD-I] SANJAY KUMAR MISHRA, Jt. Secy.”

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Confederation and India in respect of exchange of information under the Indo-Swiss DTAA is embodied in Article 26 as was substituted by the Amending Protocol. 48. By virtue of the Amending Protocol, the Indo-Swiss DTAA stood novated insofar as the provision regarding exchange of information is concerned. It is well settled that novation discharges the original contract. Thus, for all intents and purposes, Article 26 as it existed prior to 30.08.2010, ceased to exist. It is also well settled that the effect of substitution of an agreement obliterates the existing agreement and replaces the same. Thus, after 30.08.2010, the Revenue had no recourse to Article 26 as it was operative prior to 30.08.2010. 49. The principle that the substitution of a provision has the effect of removing the existing provision is also applicable to legislative instruments. Unless there is an appropriate saving clause, all rights and liabilities under a law that is substituted, would ceases to exist. 50. In Koteswar Vittal Kamath v. K. Rangappa Baliga & Co.4, the Supreme Court had explained that “Once the old rule has been substituted by the new law, it ceases to exist and does not automatically get revived when the new rule is held to be invalid”. Thus, unless the rights and liabilities under the law as prior to substitution are saved by a savings clause, or by virtue of Section 6 of the General Clauses Act, 1897, or by necessary intent, a clause that is substituted would cease to be effective.

4 (1969) 1 SCC 255 Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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5 (2004) 8 SCC 1 Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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three-Judge Bench of this Court emphasised the distinction between “supersession” of a rule and “substitution” of a rule and held that the process of substitution consists of two steps : first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place.”

6 (2024) 8 SCC 742 Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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Mehtab Majid & Co. (Firm) v. State of Madras, (1963) 14 STC 355 : 1962 SCC OnLine SC 51] , the new Rule 16 was substituted for the old Rule 16. The process of substitution consists of two steps. First, the old rule it made to cease to exist and, next, the new rule is brought into existence in its place. Even if the new rule be invalid, the first step of the old rule ceasing to exist comes into effect, and it was for this reason that the court held that, on declaration of the new rule as invalid, the old rule could not be held to be revived.” (emphasis in original)”

7 1962 SCC OnLine SC 51 Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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prior to 16.02.2000), or one which could be read as expressing the intention of the treaty partners to save any rights and obligations regarding exchange of information as extant prior to 30.08.2010. On the contrary, paragraph 3 of Article 14 of the Amending Protocol contains a non-obstante clause that makes it abundantly clear that Article 26 of the Indo-Swiss DTAA regarding exchange of the information would be applicable only for the information that relates to a fiscal year beginning or after the first day of January of the year following the date of the signing of the Amending Protocol, that is, a fiscal year commencing on or after 01.01.2011, which in the case of this country would be 01.04.2011. 56. In view of the above, we are unable to accept that any request made by the Revenue after 30.08.2010 for information relating to period prior to 01.04.2011 could have been made in terms of the Indo-Swiss DTAA. 57. We may also note the decision of Tribunal Administratif Fédéral, Switzerland [decision A-4232/2013 of 12th December 2013] rendered in the context of maintainability of a request made by the competent Indian authority on 22.06.2012 under Article 26 of the Indo-Swiss DTAA seeking information pertaining to the financial years 2005-06 to 2012-13. The order does not disclose the identity of the appellant in that case, being person in respect of which information was sought has been concealed in the said order and refers to him as X. The Revenue Authority had requested for information regarding the bank account of ‘X’ in connection with an investigation conducted in India. Pursuant to the said request, on 10.04.2013, the Federal Revenue Administration (FRA) had made a request to the bank to furnish the relevant documents and also informed ‘X’ of the Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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same. ‘X’ had opposed the request and on 23.07.2013, referred the matter to the Federal Administrative Court. The rough and ready translation8 of the relevant extract of the said decision is set out below: “6.2.4.2 It follows that Art. 26 para. 1 CDI IN-CH9, as amended by the Protocol of 30 August 2010, applies – pursuant to Art. 14 para. 3 of the Protocol – at most the reports relating to the "fiscal year" ("fiscal year") beginning on first January of the civil year following the signing of the Memorandum of Review. … CDI IN-CH is defined, the "fiscal year" ("fiscal year") corresponds to the previous year ("previous year"), excluding the "financial year immediately preceding the assessment year". By virtue of Indian law, the tenure of which is confirmed by Art. 14 para. 2 of the Protocol of 30 August 2010, the "previous year" beginning on 1st April of each civil year. This therefore means that the new art. 26 CDI CH-IN is applicable at the earliest to reports relating to the "previous year" having commenced on 1st April 2011 (corresponding to the "fiscal year" 2011/2012), which will be taxed during the "assessment year" 2012/2013. This provision shall remain without retroactive effect. More specifically, the retroactive effect of the new Art. 26 of IN- CH CDI is limited to the fiscal year in which followed the date of signature of the Protocol of 30 August 2010, while the amendments entered into force after ratification by both countries on 7 October 2011. Contracting States thus provided for a certain date of entry into force, pending revocation of the report to that intended purpose for the other provisions of the Protocol dated 30 August 2010, which apply – for India – to income realized during tax years commencing on 1st April of the civil year following the entry into force of the Review Protocol or after that date (cf. Art. 14 par. 2 let. a of the Protocol of 30 August 2020), with respect to revenues realized from 1st April 2012, with respect

8 Freely translated through https://www.onlinedoctranslator.com/en/translate-french-to-english_fr_en 9 Indo-Swiss DTAA Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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to revenues realised from 1st April 2012, accounting for the fact that the instruments of ratification were exchanged on October 7, 2011. That being the case, this retroactivity remains very limited. 6.2.5 The result of the foregoing is that international administrative assistance may at most be entered in a line of account for the fiscal year ("fiscal year") beginning on 1st April 2011 (2011/2012) and the following ("fiscal year" 2012/2013), subject to the examination of other relevant conditions (cf. hereinafter considered. 6.3). It may not in retroactively be granted for tax years ("fiscal year[s]") 02/02, 2002/03, 2003/04, 2004/05, 2005/06, 2006/07, 208/02, 07/2007 2010/11, as required by the requesting authority. These tax years do not fall within the temporal scope of the new Art. 26 CDI IN-CH. The application for administrative assistance must in this regard be dismissed.” 58. The Tribunal Administratif Fédéral ruled that only the request for financial year 2011-12 would be admissible after examining in some detail provisions of Article 26 of the Indo-Swiss DTAA substituted by virtue of Article 8 of the Amending Protocol as well as the provisions of Article 14 of the Amending Protocol. 59. Thus, we find no infirmity with the view of the learned ITAT that the request made by the competent authorities under Article 26 of the Indo- Swiss DTAA for information, which was prior to 01.04.2011, was not maintainable. 60. Having stated the above, the next question required to be addressed is whether by virtue of Clause (ix) of the Explanation to Section 153B of the Act, the period for completion of the assessment would stand extended notwithstanding that the request for information made by the Revenue Authority for a period prior to 01.04.2011, was not maintainable. Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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*** (ii) the period commencing from the day on which the Assessing Officer directs the assessee to get his accounts audited under subsection (2A) of section 142 and ending on the day on which the assessee is required to furnish a report of such audit under that subsection; or” Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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After the amendment of Finance Act, 2013 [Act 17 of 2013] “Explanation.— In computing the period of limitation under this section— (i) the period during which the assessment proceeding is stayed by an order or injunction of any court; or (ii) the period commencing from the date on which the Assessing Officer directs the assessee to get his accounts audited under sub-section (2-A) of Section 142 and— (a) ending with the last date on which the assessee is required to furnish a report of such audit under that sub- section; or (b) where such direction is challenged before a court, ending with the date on which the order setting aside such direction is received by the Principal Commissioner or Commissioner; or”

10 (2016) 12 SCC 32 Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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19.07.2000. The assessee had challenged the same by filing a writ petition and had secured an interim order dated 24.08.2000 staying the directions for conduct of a special audit. Thereafter, the assessee succeeded in its petition and the directions to conduct a special audit, which were issued on 29.06.2000 were set aside by a judgment dated 15.12.2006. In the aforesaid context, one of the questions that arose for consideration of the Supreme Court was whether the period between 24.08.2000 (the date on which the interim order was granted) and 15.12.2006 (the date on which the petition was allowed) was required to be excluded for calculation of the period of limitation for framing the assessment order. The said question was considered in the context of Explanation (1) to Section 158BE of the Act, which is para materia to Clause (ii) of the Explanation to Section 153B of the Act. The said explanation provides for an exclusion of the period during which the assessment proceedings are stayed by any order or injunction of any court. In the aforesaid context, the Supreme Court observed as under: “21. We, therefore, agree with the High Court that the special audit was an integral step towards assessment proceedings. The argument of the appellants that the writ petition of the appellant was ultimately allowed and the Court had quashed the order directing special audit would mean that no special audit was needed and, therefore, it was not open to the respondent to wait for special audit, may not be a valid argument to the issue that is being dealt with. The assessing officer had, after going through the matter, formed an opinion that there was a need for special audit and the report of special audit was necessary for carrying out the assessment. Once such an opinion was formed, naturally, the assessing officer would not proceed with the assessment till the time the special audit report is received, inasmuch as in his opinion, report of the special audit was necessary. Take a situation where the order of special audit Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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is not challenged. The assessing officer would naturally wait for this report before proceeding further. Order of special audit followed by conducting special audit and report thereof, thus, become part of assessment proceedings. If the order directing special audit is challenged and an interim order is granted staying the making of a special report, the assessing officer would not proceed with the assessment in the absence of the audit as he thought, in his wisdom, that special audit report is needed. That would be the normal and natural approach of the assessing officer at that time. It is stated at the cost of repetition that in the estimation of the assessing officer special audit was essential for passing proper assessment order. If the court, while undertaking judicial review of such an order of the assessing officer directing special audit ultimately holds that such an order is wrong (for whatever reason) that event happens at a later date and would not mean that the benefit of exclusion of the period during which there was a stay order is not to be given to the Revenue. Explanation 1 which permits exclusion of such a time is not dependent upon the final outcome of the proceedings in which interim stay was granted.” 66. It is material to note that Clause (ii) of Explanation 1 to Section 158BE of Act was also similar to Clause (ii) of the Explanation to Section 153B of the Act. The Supreme Court directed that the period during which a stay order was granted, that is, from 24.08.2000 till 15.12.2006 when the judgment setting aside the direction issued under Section 142(2A) of the Act was delivered, was to be excluded for computing the period available for passing the assessment order. However, it is material to note, that the period from 29.06.2000 till 24.08.2000; that is, the date of issuance of the order till the date of passing the stay order was not excluded. Although there is no discussion on this issue, it is implicit that the exclusion on account of direction to conduct a special audit, would not be applicable if the said Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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direction is found to be invalid. 67. In Sahara India (Firm), Lucknow v. CIT & Anr.11, the Supreme Court considered the question whether an assessee was required to be afforded a hearing before issuance of a direction for conduct of a special audit under Section 142(2A) of the Act. The Supreme Court held in the affirmative. However, pending consideration of the challenge to orders issued without following the rule of audi alteram partem, the time period for passing the assessment order had lapsed. In the aforesaid back drop, the Supreme Court also issued directions for saving the period of limitation. The relevant extract of the said decision is set out below: “36. The next crucial question is that keeping in view the fact that the time to frame fresh assessment for the relevant assessment year by ignoring the extended period of limitation in terms of Explanation 1(iii) to sub-section (3) of Section 153 of the Act is already over, what appropriate order should be passed. As noted above, the learned Additional Solicitor General had pleaded that if we were not inclined to agree with him, the interpretation of the provision by us may be given prospective effect, otherwise the interest of the Revenue will be greatly prejudiced.

(2008) 14 SCC 168], this Court had declined to stay the assessment proceedings, we are of the opinion that this Court should be loathed to quash the impugned orders. Accordingly,

11 (2008) 14 SCC 151 Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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we hold that the law on the subject, clarified by us, will apply prospectively and it will not be open to the appellants to urge before the appellate authority that the extended period of limitation under Explanation 1(iii) to Section 153(3) of the Act was not available to the assessing officer because of an invalid order under Section 142(2-A) of the Act. However, it will be open to the appellants to question before the appellate authority, if so advised, the correctness of the material gathered on the basis of the audit report submitted under sub- section (2-A) of Section 142 of the Act.”

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“8. …..Applying the principles laid down by the Apex Court in Sahara India (Firm) Vs. CIT and Another (supra), we hold that where no show cause notice was given to the assessee before making the order proposing conduct of special audit under section 142(2A) of the Act, in the present case and the CIT having approved the said proposal though after giving opportunity of hearing to the assessee is vitiated because of non-compliance with the principles of natural justice. Accordingly, the assessment order passed in the facts of present case is beyond the period of limitation and hence, the same is invalid and bad in law.”

12 (2020) 423 ITR 227 13 (2002) 4 SCC 339 Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified

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153B of the Act, the exclusion of time taken for obtaining the information (or one year) for completion of the assessment under Section 153A of the Act is applicable only if a reference for exchange of information has to be made as per the Agreement under Section 90/90A of the Act. It is necessary that reference be made in terms of the agreement. In this case, the benefit of exclusion of time by virtue of Explanation (ix) of Section 153B of the Act would, thus, be available only if the reference was made in terms of Indo- Swiss DTAA. However, as noted above, the request as made was not in terms of the Indo-Swiss DTAA. It was contrary to the limitations as expressly specified under Article 14 of the Amending Protocol. 72. In view of the above, the questions to law as framed are answered against the Revenue and in the negative; that is, against the Revenue and in favour of the Assesses. 73. The appeals are, accordingly, dismissed. The pending applications, if any, stand disposed of.

VIBHU BAKHRU, J

TEJAS KARIA, J MAY 13, 2025 m/RK/‘GSR’ Digitally Signed By:TARUN RANA Signing Date:15.05.2025 21:05:26 Signature Not Verified